Big Tobacco and the Historians

By

February 25, 2010

Last summer Robert Proctor, a Stanford professor who studies the history of tobacco, was surprised to receive court papers accusing him of witness tampering and witness intimidation, along with a subpoena for his unfinished book manuscript. Then in January he got another subpoena, this one for three years of e-mails with a colleague, and also for his computer hard drive. Attorneys for R.J. Reynolds and Philip Morris USA are trying to get him barred from testifying in a Florida court as an expert witness on behalf of a smoker with cancer who is suing the companies.

Jon Wiener responds to criticism of his article by J. Matthew Gallman, of the University of Florida, in a web-only letters exchange.

Proctor hadn’t tampered with any witnesses; all he had done was e-mail a colleague at the University of Florida asking about grad students there who were doing research for Big Tobacco’s legal defense. But he’s had to hire his own lawyers and spend days in depositions, defending himself from the charges. He told me he had recently spent "sixteen hours under oath, twelve lawyers in a room overlooking San Francisco Bay, a million dollars spent on deposing me and going after these e-mails."

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There’s a reason Big Tobacco would like to keep Proctor out of the courtroom. He’s one of only two historians who currently testify on behalf of smokers with cancer–while forty historians have testified on behalf of the tobacco industry. In 1999 Proctor became the first historian to testify against Big Tobacco, and over the past ten years he has testified in fifteen cases. He’s published several books, including Cancer Wars: How Politics Shapes What We Know and Don’t Know (1995), and in his co-edited book, Agnotology: The Making and Unmaking of Ignorance (2008), he examines "the tobacco industry’s efforts to manufacture doubt about the hazards of smoking." He’s also a fellow of the prestigious American Academy of Arts and Sciences.

The harassment of Proctor by Big Tobacco’s law firms reflects the new landscape of litigation over the health hazards of smoking. In the previous chapter of this long-running story, forty-six state attorneys general reached a master settlement of $246 billion with Big Tobacco in 1998 as compensation for states’ expenditures on cancer caused by tobacco. The next year the Clinton Justice Department filed a federal lawsuit, U.S. v. Philip Morris et al., which was decided in 2006 by Judge Gladys Kessler in federal district court in Washington. She ruled that for fifty years the tobacco companies had "lied, misrepresented and deceived the American public…about the devastating health effects of smoking." In late February both sides asked the Supreme Court to review that case.

Meanwhile, plaintiffs’ attorneys were working on a national class-action suit, Engle v. R.J. Reynolds, on behalf of smokers with cancer. But the Court of Appeals for the Third Circuit limited the suit to Florida, where in 1999 jurors awarded smokers with cancer $145 billion, the largest punitive damage jury award in US history. In 2006 the Florida Supreme Court accepted the decision but dissolved the class and said each case had to be tried separately. As a result, there’s a lot of tobacco litigation going on in Florida right now–potentially 9,000 lawsuits. In one of the first of those "Engle progeny" cases, a Fort Lauderdale jury in November awarded Lucinda Naugle $300 million. Proctor is scheduled to testify in another.

In these cases, history has become a key component in the tobacco attorneys’ defense strategy. In the past, when smokers with cancer sued for damages, the companies said they shouldn’t have to pay, because there was a "scientific controversy" about whether smoking causes cancer. But in recent years they have given up that argument and now argue something like the opposite: "everybody knew" smoking causes cancer. So if you got cancer from smoking, it’s your own fault.

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To persuade juries, they need historians–experts who, for example, can testify that newspapers in the plaintiff’s hometown ran articles about the health hazards of smoking in the 1940s or ’50s or ’60s, when he or she started. So Big Tobacco has been spending a lot of money hiring historians–and is stepping up the harassment of Proctor.

The charges of witness tampering and witness harassment concerned history grad students at the University of Florida who had been hired to do research for Big Tobacco by Gregg Michel, a historian at the University of Texas, San Antonio. Proctor learned about the grad students from Michel’s deposition. (Michel did not respond to requests for an interview.) "I e-mailed a colleague at the University of Florida asking about this," Proctor said–Betty Smocovitis, a historian of science. "She wrote back and said she was horrified. Said it couldn’t be true. Then she found that it was."

The next thing Proctor knew, tobacco attorneys were telling a court in Florida last June that Proctor, simply by e-mailing his colleague, had engaged in an "unethical" campaign of "intimidation," seeking "to malign and harass graduate students who serve as research assistants." As a result, one of the students who had been asked by the department chair about the job had "voiced doubts whether she should continue working" for Big Tobacco. Proctor’s e-mail, they told the court, therefore constituted an "improper" effort to "influence, interfere or intimidate" a witness for the defendants.

They also subpoenaed Smocovitis, hoping to get her to say that Proctor had been threatening to "out" the grad students in question. At her deposition, she told me, she told tobacco attorneys that "Robert Proctor never said he would name names, and I don’t believe he ever intended to. He’s not out to get grad students." She recalled that during a break in her deposition, when the tobacco attorneys "saw they were not getting what they wanted from me about Proctor, they screamed across the table, ‘We’re going to get him. He’s never going to testify again!’"

In the end, the judge ordered Proctor to hand over the e-mails–all ten of them. Nothing improper was found, no witness tampering or intimidation, and the tobacco attorneys dropped the issue–for a while.

In August, when attorneys for R.J. Reynolds subpoenaed Proctor’s unpublished work-in-progress, a history of global tobacco, TheChronicle of Higher Education said the subpoena had "major implications for scholars and publishers." Ordinarily litigants are entitled to have everything relevant to prepare their case, and the tobacco attorneys said they needed Proctor’s manuscript. Proctor replied that forcing him to release his unfinished manuscript would violate his academic freedom, his privacy rights and his freedom of speech. The Florida court agreed with him in a November ruling; the judge held that an author has a constitutional right to choose when and where his writings are published. (In that ruling the judge cited a 1985 Supreme Court ruling that Harper & Row’s right to control publication of Gerald Ford’s memoirs superseded the First Amendment right of a magazine to publish excerpts without authorization–the loser in that case was The Nation.) But the fact remains that Proctor was forced by R.J. Reynolds attorneys to spend time and money fighting harassment-by-subpoena.

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And it’s not over yet, according to the plaintiffs’ attorney, William Ogle. If R.J. Reynolds loses a jury verdict in the trial at which Proctor will testify, the company will almost certainly appeal, on the grounds that it should have been given the book manuscript. "So the issue will be litigated again in the court of appeals," Ogle said. "Then they could take it to the Supreme Court of Florida, and to the US Supreme Court." And since cases are being argued all over the state, "they could raise it again in Daytona Beach, Tampa, Fort Lauderdale or Miami–anywhere Proctor is scheduled to testify."

The same legal filing that accused Proctor of witness tampering also argued that he had "already caused a mistrial…by gratuitously injecting…racial slurs into his testimony to impugn defendants." That’s another example of the tactics practiced by tobacco lawyers. Proctor was the leadoff witness in the first of the "Engle progeny" cases in Florida, the follow-up to the class-action suit with the $145 billion verdict. On the stand Proctor began to explain racism in tobacco marketing. He started to say that the companies had marketed products called Nigger-Head Tobacco and Nigger-Hair Tobacco–brands that existed as late as the 1960s. But a Philip Morris attorney, objecting that Proctor had injected racial slurs into the courtroom, demanded a mistrial–and got it. The judge ruled that Proctor’s utterance of those words was "prejudicial."

If Proctor had been found to have engaged in witness tampering or witness intimidation in the case of the Florida grad students, he would probably not work again as an expert witness. Then there would be only one historian left who testifies against Big Tobacco: Louis Kyriakoudes.

Kyriakoudes, who has faced a similar campaign of harassment and intimidation, is in a more vulnerable position than Proctor. He’s not a full professor or a member of the National Academy; he’s an associate professor of history at the University of Southern Mississippi. He’s published one book and is writing a second, Why We Smoked: Culture, History, and the North American Origins of the Global Cigarette Epidemic. He’s also published many articles in scholarly journals–notably, research about tobacco advertising and about historians as tobacco experts.

Kyriakoudes was also harassed over the University of Florida grad student researchers. His offense: sending Proctor the deposition–which is public information–in which Proctor found the names of the students. Tobacco attorneys told a judge in Broward County that this was grounds for excluding Kyriakoudes as an expert witness. The judge rejected that motion in October. But, Kyriakoudes told me, "since last January [2009] I’ve been deposed by the other side at least seven or eight times." The tobacco attorneys’ strategy, it appears, is to make it so time-consuming for him to continue that he will conclude it’s not worth it. And it’s had an effect: "I’ve cut back a lot of what I’ve been doing," Kyriakoudes told me in mid-February. "They hit me pretty hard, making it difficult to do my research. So I’ve pulled out of cases. I cut back to one or two trials a year. Harassment is effective."

One more historian has testified against Big Tobacco: Allan Brandt. But he testified only once. His 2007 book, The Cigarette Century, won several awards. Brandt is now dean of the Graduate School of Arts and Sciences at Harvard and a professor of the history of medicine and the history of science. He has not testified in a case since U.S. v. Philip Morris in 2003. When I asked why, he said, "That case appealed to me because it was the United States bringing a case against all the tobacco companies, a case on behalf of the American public, a historic case." But "it’s enormously time-consuming and labor-intensive to testify," he said. And, as he explained in his book, "I had no interest in becoming an expert witness…. I did not want my scholarship to be dismissed as ‘advocacy.’"

Brandt changed his mind, he explains in his book, after he saw the arguments offered by historians working for the tobacco companies, people like Lacy Ford of the University of South Carolina, who "had published no research at all" on the subject. That left Brandt with a feeling of "disgust." (Ford declined to comment for this story.) And he was "appalled" at the defense of tobacco companies offered by Kenneth Ludmerer, a historian of medicine at Washington University in St. Louis, who was an expert for Philip Morris. Brandt considered Ludmerer’s testimony to be bordering on "historical malpractice" because he "has never published on the history of tobacco, on lung cancer, on the impact of tobacco on health, or on the industry’s claims about smoking and health." So Brandt agreed to testify for the government in U.S. v. Philip Morris.

When I asked Ludmerer about Brandt’s criticism of his testimony in U.S. v. Philip Morris, he replied, "Where is civility in this country? These ad hominem attacks are injurious. I had coronary artery bypass surgery in 2005. I’m sure a lot of the disease came from tension from the comments people made about my testimony. I’ve never done anything other than serve the public interest." He added, "I was hoping the tobacco industry would lose." But then why did he testify for the industry? "I considered it honorable to stand up for doing history properly," he answered. I asked how much he had been paid by Big Tobacco for working as an expert witness. "Maybe $500,000," he said. (Patricia Cohen of the New York Times reported in 2003 that he had earned "more than $550,000.")

Brandt decided not to testify in any other cases because, he said, "I found my time on the stand highly frustrating." The cross-examination and the media coverage left him feeling "a bit bruised." And in the meantime, Bill Clinton, whose Justice Department brought the suit, had left office and the new Bush administration ordered the government trial team to reduce its claim for damages from $280 billion to $10 billion–a tremendous victory for Big Tobacco, which was celebrated on Wall Street. (In late February the Obama Justice Department asked the Supreme Court to restore the $280 billion penalty.)

Nevertheless, Judge Kessler’s 2006 decision was a monumental one: the tobacco companies "suppressed research, they destroyed documents, they manipulated the use of nicotine so as to increase and perpetuate addiction…and they abused the legal system in order to achieve their goal–to make money." Brandt felt vindicated but unhappy that the claims for remedies had been vastly scaled back by the Bush White House.

Brandt, Kyriakoudes and Proctor are proud of their work and let everyone know about it, while those on the other side never mention their work for Big Tobacco on their faculty websites or online CVs. Lacy Ford doesn’t, and neither does Michael Schaller at the University of Arizona or Kenneth Ludmerer at Washington University. James Kirby Martin’s CV at the University of Houston website says he has "consulted on various historical-related product liability and health issues" but doesn’t say which products, or which side, he has worked for.

As the University of Florida events demonstrate, a lot of the actual research for the tobacco attorneys is done not by their historian experts but by grad student assistants. Birte Pfleger was one. She was working on her dissertation at the University of California, Irvine (where I teach), in 2002 when an e-mail was circulated from John Snetsinger, a professor at California Polytechnic, San Luis Obispo, seeking a research assistant and offering $25 an hour. At the time, Pfleger told me, that "sounded like an awful lot of money." She took the job.

The assignment was the standard one: find articles in the local newspapers about the dangers of smoking, starting in 1950. "We found ads that said smoking was glamorous and sexy and fun, but he said he didn’t want those," she remembered. "He just wanted articles that said smoking was bad for your health." At that point, she recalled, "we started wondering who he was and what he was doing with this. We asked him, but he never really explained it."

I figured out what case Pfleger had been working on and told her about it: a lawsuit against Philip Morris brought by Betty Bullock of Newport Beach, who was dying of lung cancer and eventually won a big punitive damages award. "I would not have done the work if I had known what it was for," Pfleger then said. "I’m relieved that the jury rejected the tobacco industry’s argument." (Snetsinger did not respond to interview requests.)

In Bullock’s trial, for which Snetsinger had been deposed in 2002, the jury awarded her an awesome $28 billion. That set a record as the single largest judgment against Philip Morris. The company appealed, and the court reduced the $28 billion to $28 million. The company appealed that too, but a California appeals court concluded in 2006 that "Philip Morris’s misconduct was extremely reprehensible" and that "the vast ‘scale’ and ‘profitability’" of the misconduct justified an award of $28 million–to Betty Bullock’s daughter Jodie, since Betty had died of smoking-related causes in 2003. The company appealed again on another issue and won a retrial in 2009, which ended recently with an award of $13.8 million. Philip Morris attorneys have said they will appeal that verdict as well.

Is it true that "everybody knew" in the 1950s and ’60s that smoking could kill you? A consensus of medical opinion had formed by the mid-1950s that smoking caused lung cancer, as Allan Brandt shows in The Cigarette Century. But the tobacco industry denied that fact and did everything it could to create doubt about the health effects of smoking. It paid doctors and scientists to say there was "no proof" and suggested through advertising that smoking was glamorous and sexy, rebellious yet deeply American. In the late 1940s, for example, "More Doctors Smoke Camels" was a ubiquitous print ad. Despite the surgeon general’s 1964 report that smoking causes cancer, the Marlboro Man indelibly linked smoking and masculinity-in-the-mountains for a generation of Americans.

A centerpiece of Big Tobacco’s defense strategy is the argument that smoking is voluntary, and thus it’s your own fault if you get cancer. That neglects the problem that nicotine is addictive, and poses another issue for historians–what did the tobacco companies know about addiction, and when did they know it? As Brandt’s book documents, the companies knew that nicotine was described as addictive by many scholars in the 1940s. Nicotine creates a physical dependency; trying to quit leads to classic symptoms of withdrawal, including anxiety, depression and craving for the missing chemical. But the tobacco companies denied that smoking was addictive. When teens started smoking in the 1950s and ’60s–the people now dying of lung cancer who are suing Big Tobacco–they didn’t make an informed choice based on knowledge of nicotine addiction. And later, when they had trouble quitting, many followed the advice of the companies and switched to "lite," "low tar" or filter cigarettes–which are also hazardous.

Given the deception practiced by Big Tobacco, how are the historians who work for tobacco attorneys able to blame the smokers? As they admit under cross-examination by plaintiffs’ attorneys, in their "research," they fail to examine the most important source of information on the history of smoking: the archives of the tobacco manufacturers and their public relations firms, which are readily available online at tobaccodocuments.org, as required by the 1998 settlement in the state attorneys general lawsuit. These materials document industry efforts to suppress information about cancer and smoking and, in Kyriakoudes’s words, to "secretly sponsor disinformation."

In a major research paper published in the international peer-reviewed journal Tobacco Control, Kyriakoudes examined the testimony of eighteen experts in twenty-seven trials. He found that the tobacco companies’ historians "present a history of the cigarette in which the tobacco industry all but ceases to exist." Research in archives is the hallmark of historical scholarship. The court testimony of Lacy Ford, James Kirby Martin and Michael Schaller, along with that of Nixon biographer Joan Hoff of Montana State, Southern historian Robert Jeff Norrell of the University of Tennessee, Knoxville, and the rest, Kyriakoudes concluded, "fails to meet basic professional standards of scholarship."

Of course, some historians have refused to work for Big Tobacco, on the grounds of those same scholarly standards. One is Richard Abrams of the University of California, Berkeley, an expert on government-business relations. He said that when tobacco attorneys from the firm Arnold & Porter approached him fifteen years ago, "I told them that tentatively I was sympathetic to their position for the post-1965 period, but I wasn’t sure about before that–so I needed to get into their records to see what they were telling the public. They said, ‘You can’t see our archive, but we’ll send you stuff.’ I said, ‘If you’re going to put me on the stand as an expert witness, I can’t say I had access only to what you chose to send me.’ They still wouldn’t let me see their archives, so I said forget it."

Why, over the past fifteen years, have forty historians wanted to help Big Tobacco? I asked a dozen historians on Kyriakoudes’s and Proctor’s lists. Virtually all declined to be interviewed, including Otis Graham, emeritus at the University of California, Santa Barbara; Elizabeth Cobbs Hoffman of San Diego State; and Terry Parssinen of the University of Tampa, who was Big Tobacco’s expert in the recent Fort Lauderdale case where the jury awarded the smoker with cancer $300 million.

Michael Parrish of the University of California, San Diego, did agree to talk about it. He said he had worked on five cases, the last in 2003, and isn’t doing it anymore. "For doing research, I charged $110 an hour," he told me. "If I was deposed, it was $250 an hour. If it went to trial, $400 an hour. I didn’t do it out of love for the tobacco industry." But, he added, he hadn’t done it just for the money: "I was a smoker for twenty years and quit. I felt there had to be a little more personal responsibility there, instead of [plaintiffs] putting all the blame on the tobacco companies."

But money seems to be the main inducement–at least that was the pitch when Michael Schaller invited me to work as an expert for the tobacco companies in 2005. He called it "a lucrative consulting opportunity." (I declined.)

Historians earn big money working for Big Tobacco: Stephen Ambrose, who taught at the University of New Orleans and was famous for writing bestsellers about D-Day, Lewis and Clark, and Eisenhower as a World War II general, was asked in a deposition why he was testifying for the companies. His answer was brief: "for compensation." Tobacco companies paid him $25,000 for just one case in 1994, according to Laura Maggi in The American Prospect. (Ambrose, a smoker, died of lung cancer in 2002, when he was 66.)

But don’t plaintiffs’ attorneys also have big money to hire their own historian experts? The jury award in California’s Bullock case, for example, was $28 billion. Proctor told me he has made an average of about $40,000 a year over the twelve years he has worked as an expert witness. Kyriakoudes told me he made $75,000 last year. "I testified in seven trials, all in Florida," he said.

Forty historians have testified for Big Tobacco; only three have testified against–why the disparity? Two factors help explain it. First, the tobacco attorneys many years ago organized the recruitment of historians and coordinated the creation of a common body of research. Kyriakoudes wrote in his article for Tobacco Control that in 1984, "the industry’s law firms formed the Special Trial Issues Committee," whose task, according to a memo to Brown and Williamson, was to develop witnesses who "will also explain" to juries that Americans’ decisions to smoke cigarettes were "wholly unrelated" to industry "promotion or coercion." Plaintiffs’ attorneys, in contrast, typically work as single practitioners and thus can’t come close to matching the organization and coordination of the other side.

They also have nothing like the money Big Tobacco pays its law firms. The reasons were explained by Michael Piuze, the Los Angeles attorney who won the $28 billion verdict in the Bullock case. When it comes to the harm caused by smoking, he said, Big Tobacco is unique. "In most product liability litigation–auto manufacturing or pharmaceuticals–there may be one lawsuit for every 50,000 customers," Piuze said. "But tobacco companies kill or seriously injure one in two of their customers." (That is the standard scientific view, endorsed by the American Cancer Society and the World Health Organization.) Thus they can’t possibly pay for the damage they have caused. "So the industry decided in the 1950s on a scorched-earth litigation policy. They would never give up. Never settle. If they ever lost a case, they would appeal. Forever. That’s the way it still is. The message to the plaintiffs’ bar is clear: don’t screw with us, or you’ll be sorry. We will break you financially."

"There are 38 million people who live in California, and there is one tobacco case pending in California," says Piuze. "In the entire history of the state there have been eight tobacco trials. That’s one side of the ledger. On the other side, 37,000 people die of tobacco-related causes in California every year. That’s 100 every day. Have they been successful with their litigation strategy? You better believe it."